supreme court, appellate division first department...strickland v washington, 466 us 668, 694...
TRANSCRIPT
SUPREME COURT, APPELLATE DIVISIONFIRST DEPARTMENT
JANUARY 28, 2020
THE COURT ANNOUNCES THE FOLLOWING DECISIONS:
Acosta, P.J., Renwick, Kapnick, Mazzarelli, JJ.
10494 & In re Spectrum News NY1, Index 150305/16M-7807 Petitioner-Appellant,M-7828M-7949 -against-
New York City Police Department, et al.,Respondents-Respondents.
- - - - -Reporters Committee for Freedom of thePress, ABC, Inc., The Associated Press, Association of Alternative Newsmedia, Atlantic Media, Inc., Brechner Center for Freedom of Information, Cable News Network, Inc., CBS Broadcasting Inc. on behalf of CBS News and WCBS-TV, Daily News, LP, The E.W. Scripps Company, First Look Media Works, Inc., Gannet Co.,Inc., Hearst Corporation, Investigative Reporting Workshop at American University,Investigative Studios, The Marshall Project, MPA - The Association of Magazine Media, National Newspaper Association, The National Press Club, National Press Club Journalism Institute, National Press Photographers Association, NBCUniversal Media, LLC, New York Public Radio, The New York Times Company, The News Leader Association, Online News Association, POLITICO LLC, ProPublica, Radio Television Digital News Association, Society of Professional Journalists, UnivisionCommunications Inc., VICE Media, WNET and Center for Constitutional Rights.
Amici Curiae._________________________
Patterson Belknap Webb & Tyler LLP, New York (Saul B. Shapiro ofcounsel), for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York (JeremyW. Shweder of counsel), for respondents.
Ballard Spahr LLP, New York (Thomas B. Sullivan of counsel), for Reporters Committee for Freedom of the Press and ABC, Inc., TheAssociated Press, Association of Alternative Newsmedia, AtlanticMedia, Inc., Brechner Center for Freedom of Information, CableNews Network, Inc., CBS Broadcasting Inc. on behalf of CBS Newsand WCBS-TV, Daily News, LP, The E.W. Scripps Company, First LookMedia Works, Inc., Gannet Co., Inc., Hearst Corporation,Investigative Reporting Workshop at American University,Investigative Studios, The Marshall Project, MPA - TheAssociation of Magazine Media, National Newspaper Association,The National Press Club, National Press Club JournalismInstitute, National Press Photographers Association, NBCUniversalMedia, LLC, New York Public Radio, The New York Times Company, The News Leader Association, Online News Association, POLITICOLLC, ProPublica, Radio Television Digital News Association,Society of Professional Journalists, Univision CommunicationsInc., VICE Media, and WNET, amicus curiae.
Darius Charney, New York, for Center for Constitutional Rights,amicus curiae.
_________________________
Appeal from purported order (denominated an interim
decision), Supreme Court, New York County (Kathryn E. Freed, J.),
entered January 30, 2019, which, insofar as appealed from as
limited by the briefs, denied the petition brought pursuant to
CPLR article 78 to direct respondents to disclose, pursuant to
the Freedom of Information Law (FOIL) (Public Officers Law §§
84-90), video footage from body cameras worn by officers of
respondent New York City Police Department (NYPD), to the extent
2
of permitting respondents to redact the faces of persons other
than officers from any video footage recorded by the body-worn
cameras and to redact certain communications between officers,
and directed the parties to submit letters in preparation for a
hearing on NYPD’s ability to redact the records without
unreasonable difficulty, unanimously dismissed, without costs, as
taken from a nonappealable paper.
This proceeding stems from Spectrum News NY1's (Spectrum)
attempts to gain access to video files from the voluntary body
camera experiment. Specifically, Spectrum filed a FOIL request
for unredacted videos from the NYPD’s voluntary body camera
program begun in 2014. NYPD denied the request, claiming that
unredacted files were exempt from disclosure under FOIL.
Spectrum then commenced this article 78 proceeding seeking a
judgment compelling respondent NYPD to comply with its request.
In a previous interim order, which is not the subject of this
appeal, Supreme Court found that the article 78 petition and
answer raise questions of fact as to whether complying with the
request for unredacted videos would be unduly burdensome on
respondent NYPD, necessitating a hearing on that issue.
Prior to the hearing, the parties stipulated that out of a
disputed 328 videos, only 30 would be the subject of the hearing.
3
Supreme Court then issued “an interim decision,” which was not
the product of a motion for relief. Instead, the “interim
decision,” among other things, permitted respondents to redact
the faces of persons other than officers from any video footage
recorded by the body cameras and to redact certain communications
between officers, and directed the parties to submit letters in
preparation for a hearing on NYPD's ability to redact the records
without unreasonable difficulty. Then, rather than conducting
the hearing, Supreme Court granted petitioner leave to appeal
from the “interim decision.”
This appeal is thus taken from an “interim decision,” which
is not an appealable paper. The lack of an appealable paper here
deprives the Court of jurisdiction and requires dismissal of
Spectrum’s appeal, albeit without prejudice. Where, as here, a
party brings an appeal from a nonappealable paper, this Court
regularly dismisses the appeal for lack of jurisdiction (see
e.g., Matter of Hannah O., 159 AD3d 650, 650 [1st Dept 2018[;
Lipin v Danske Bank, 130 AD3d 470, 471 [1st Dept 2015], appeal
dismissed 26 NY3d 992 [2015]; Clemons v. Schindler El. Corp., 87
AD3d 452, 453-454 [1st Dept 2011]). While there are instances
where this Court has deemed a paper denominated as a “decision”
to nonetheless be appealable because it contained all the
4
hallmarks of an order (see e.g. Matter of Samantha F. [Edwin F],
169 AD3d 549, 549 [1st Dept 2019]) appeal dismissed 33 NY3d 1042
[2019], that is not the situation here. As Supreme Court itself
noted, it issued the interim decision without any motion for
relief pending. Instead, it appears that the court was limiting
the scope of the hearing, and the decision did not result in any
“order” being issued.
In re Spectrum News NY1 v New York City Police Department
M-7807 &M-7828 - Motions to file amicus briefs granted, and
the briefs deemed filed.
M-7949 - Motion to file response to amicus briefsgranted, and the brief deemed filed.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
5
Manzanet-Daniels, J.P., Gesmer, Oing, Moulton, González, JJ.
10830 In re Sharon Bannister, Ind. 5306N/16Petitioner,
-against-
Hon. Maxwell Wiley, etc., et al.,Respondents._________________________
Janet E. Sabel, The Legal Aid Society, New York (Stephen Pokartof counsel), for petitioner.
Bridget G. Brennan, Special Narcotics Prosecutor, New York(Brooke Verdiglione of counsel), for Cyrus R. Vance, Jr. andBridget G. Brennan, respondents.
_________________________
Petition pursuant to CPLR article 78 for a writ of
prohibition barring petitioner’s retrial upon New York County
indictment 5306N-16, after her first trial ended with the trial
court’s sua sponte declaration of a mistrial without petitioner’s
consent, unanimously granted, without costs, and the indictment
dismissed.
The trial court was not compelled by manifest necessity to
declare a mistrial and terminate the proceedings (see Matter of
Capellan v Stone, 49 AD3d 121 [1st Dept 2008], lv denied 10 NY3d
716 [2008]), and accordingly, retrial is barred under the Double
Jeopardy Clauses of the Federal and New York State Constitutions
(US Const 5th Amend; NY Const, art I, § 6; see also People v
6
Michael, 48 NY2d 1, 7 [1979]). It was an abuse of discretion to
declare a mistrial in order to accommodate a juror’s weekend
travel plans, including a Friday, which she belatedly informed
the court about during deliberations, where the court, as
requested by defendant, reasonably could have directed the juror
to report for deliberations the following day, and the court also
failed to confirm that the jury was hopelessly deadlocked at the
time (see Matter of Colcloughley v Johnson, 115 AD2d 58, 62 [1st
Dept 1986], lv denied 68 NY2d 604 [1986]).
Justice Maxwell Wiley has elected, pursuant to CPLR 7804
(i), not to appear in this proceeding.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
7
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10873- Ind. 1347/0910873A &M-65 The People of the State of New York,
Respondent,
-against-
Rasheen J. Gamble also known as Sheenie,Defendant-Appellant._________________________
Robert S. Dean, Center for Appellate Litigation, New York(Abigail Everett of counsel), for appellant.
Rasheen Gamble, appellant pro se.
Darcel D. Clark, District Attorney, Bronx (Kyle R. Silverstein ofcounsel), for respondent.
_________________________
Judgment, Supreme Court, Bronx County (Margaret Clancy, J.),
rendered November 13, 2013, convicting defendant, after a jury
trial, of murder in the second degree and attempted assault in
the second degree, and sentencing him to an aggregate term of
26a years to life, and order, same court and Justice, entered on
or about December 20, 2017, which denied defendant’s CPL 440.10
motion to vacate the judgment, unanimously affirmed.
The court properly denied, without a hearing, defendant
pro se’s CPL 440.10 motion and appellate counsel’s supplemental
CPL 440.10 motion asserting ineffective assistance of counsel.
Defendant argues that there was no legitimate strategic reason
8
for pretrial counsel’s consent, without first consulting
defendant, to the People’s untimely (see CPL 240.90) motion to
compel a DNA sample. Assuming that counsel’s consent under these
circumstances was objectively unreasonable, we find that
defendant was not prejudiced under either the state or federal
standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];
Strickland v Washington, 466 US 668, 694 [1984]). Independent of
any DNA evidence, there was overwhelming evidence of defendant’s
guilt, including, among many other things, the presence of
defendant’s fingerprints at a location that unequivocally
connected him to the crime (see People v Lewis, 44 AD3d 422,
422-23 [1st Dept 2007], lv denied 9 NY3d 1035 [2008]). The court
also providently exercised its discretion in determining that a
hearing would serve no useful purpose, particularly in light of
defendant’s detailed submissions regarding his interactions with
pretrial counsel, who was deceased.
The court providently exercised its discretion in precluding
defendant from cross-examining a witness about an arrest that had
resulted in a dismissal, because trial counsel had insufficient
information to demonstrate that the charges were not dismissed on
the merits, and thus failed to demonstrate a good faith basis for
9
the inquiry (see People v Padilla, 28 AD3d 365 [1st Dept 2006],
lv denied 7 NY3d 792 [2006]). Counsel presented only unsupported
speculation that the charges were dismissed on speedy trial
grounds. Moreover, based on information that the trial
prosecutor received from the prosecutor who had handled the
witness’s case, it appeared that the dismissal may have been on
the merits. In any event, any error was harmless (see People v
Crimmins, 36 NY2d 230 [1975]). We also find no violation of
defendant’s right to cross-examine witnesses (see Delaware v Van
Arsdall, 475 US 673, 678-679 [1986]).
The challenged portions of the prosecutor’s summation do not
warrant reversal (see People v D’Alessandro, 184 AD2d 114, 118-
120 [1st Dept 1992], lv denied 81 NY2d 884 [1993]). Although the
prosecutor’s comments on the lack of an “innocent explanation”
for certain evidence tended to shift the burden of proof, the
court’s curative instructions were sufficient to prevent any
prejudice. However, the prosecutor’s arguments about defendant’s
failure to make a 911 call at the time of the incident, or to
assert his innocence during a call to his mother after his
flight, were inappropriate under the facts of the case, and the
court should not have permitted the jury to consider them.
Nevertheless, these errors were harmless in light of the
10
overwhelming evidence.
The court providently exercised its discretion in denying an
adverse inference instruction regarding evidence rendered
unavailable by the flooding of a storage facility by Hurricane
Sandy (see e.g. People v Daly, 140 AD3d 593, 594 [1st Dept
2016]), and defendant’s arguments to the contrary are unavailing.
We perceive no basis for reducing the sentence.
We have considered and rejected defendant’s remaining
claims, including those contained in his pro se supplemental
brief.
M—65 - People v Gamble
Motion for an adjournment and permission tofile a pro se supplemental reply brief,denied.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
11
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10874 In re Veronica D., Dkt. V-07722-15/18QPetitioner-Appellant,
-against-
Loreni S.,Respondent-Respondent._________________________
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel ofcounsel), for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
Janet Neustaetter, The Children’s Law Center, Brooklyn (LouiseFeld of counsel), attorney for the child.
_________________________
Order, Family Court, Bronx County (Sue Levy, Referee),
entered on or about March 18, 2019, which dismissed, without
prejudice, the petition of the grandmother Veronica D. for the
enforcement of an order of visitation, unanimously affirmed,
without costs.
An evidentiary hearing on a petition is not required where
the court has sufficient information to “make an informed []
determination regarding the best interests of the child” (Matter
of Law v Gray, 116 AD3d 699, 700 [2d Dept 2014]); see also Matter
of Reynaldo M. v Violet F., 88 AD3d 531 [1st Dept 2011]). This
was undoubtedly the case here.
12
Referee Levy not only issued the initial custody/visitation
order in 2015, but also modified that arrangement in the February
2018 custody and visitation order the grandmother seeks to
enforce through this petition. She has also presided over the
parties’ contentious family offense, enforcement and modification
petitions, and is fully familiar with the facts and the relevant
parties in this case. The petition’s allegations – namely, that
the child wished to visit with the grandmother and was being
denied that right – have been refuted by the child directly. The
child’s adamant refusal to see the grandmother and desire to
“take a break” from her was also evident through the child’s own
words and expressed to the court through other related petitions
presented to it. With this history, the Referee was in a
position to render a fully-informed decision, even without the
benefit of a full evidentiary hearing on this petition (Law at
699).
Further, as the mother points out, a reversal of the order
appealed from would have no practical effect. A hearing is
ongoing in the Family Court with respect to the mother’s petition
to modify the custody and visitation order and her attempts to
terminate the grandmother’s visits entirely. At the conclusion
of that hearing the Family Court will decide whether to modify or
13
to continue the February 2018 custody and visitation order. It
is also noted that the order appealed from dismissed the petition
“without prejudice,” and thus the grandmother will be permitted
to re-file the petition in the event that the Family Court
decides to keep the custody and visitation order in place.
We have considered the parties’ remaining contentions, and
find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
14
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10875 Jose Figueroa, Index 300844/14Plaintiff-Appellant,
-against-
Ved Parkash, Defendant-Respondent.
_________________________
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac ofcounsel), for appellant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh ofcounsel), for respondent.
_________________________
Judgment, Supreme Court, Bronx County (Wilma Guzman, J.),
entered on or about November 8, 2018, dismissing the complaint
pursuant to an order, same court and Justice, entered on or about
June 21, 2018, which granted defendant’s motion for summary
judgment dismissing the complaint, unanimously affirmed, without
costs.
In this action where plaintiff alleges that he was injured
as a result of a fire in his apartment due to defendant building
owner’s negligent failure to provide an operable smoke detector,
defendant demonstrated prima facie that he satisfied his
statutory duty to provide a functional smoke detector in the
apartment, and accordingly, the obligation to maintain the smoke
15
detector was assumed by plaintiff (see Administrative Code of
City of NY § 27-2045[a][1], [b][1], [2]).
Plaintiff’s argument that defendant voluntarily assumed a
duty to ensure his smoke detector was in good working condition
by regularly inspecting tenants’ smoke detectors, is unavailing.
“Liability under this theory may be imposed only if defendant's
conduct placed plaintiff in a more vulnerable position than he
would have been in had defendant done nothing” (Poree v New York
City Hous. Auth., 139 AD3d 528, 529 [1st Dept 2016]; see Heard v
City of New York, 82 NY2d 66, 72 [1993]). Here, however,
plaintiff provided no evidence that he relied on defendant’s
inspection of his smoke detector to ensure its functionality, and
instead testified that he never saw the building superintendent
inspect his smoke detector.
We have considered plaintiff’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
16
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10876 Robert Hornsby, Index 157233/17 Plaintiff-Respondent,
-against-
Cathedral Parkway Apartments Corp., et al.,
Defendants-Appellants._________________________
Mischel & Horn, P.C., New York (Christen Giannaros of counsel),for appellants.
Rheingold Giuffra Ruffo & Plotkin LLP, New York (Jeremy A.Hellman of counsel), for respondent.
_________________________
Order, Supreme Court, New York County (Robert D. Kalish,
J.), entered July 16, 2019, which, in this personal injury
action, denied defendants’ motion for summary judgment dismissing
the complaint on the ground that their motion papers exceeded the
court’s page limit, unanimously affirmed, without costs.
The motion court did not improvidently exercise its
discretion in denying defendants’ summary judgment motion on the
ground that their affirmation in support far exceeded the motion
17
court’s page limitation rules (see 22 NYCRR 9.1; compare Matter
of East 91st St. Crane Collapse Litig., 119 AD3d 437, 438 [1st
Dept 2014]; Macias v City of Yonkers, 65 AD3d 1298, 1299 [2d Dept
2009]). If we were to reach the merits, we would find that
summary judgment should also be denied in light of the
conflicting expert opinions.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
18
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10877 Anthony Wells, as President Index 156834/14of Social Service Employees Union Local 371,
Plaintiff-Appellant,
-against-
City of New York, et al.,Defendants-Respondents._________________________
Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg ofcounsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. Westof counsel), for respondents.
_________________________
Order, Supreme Court, New York County (James E. d’Auguste,
J.), entered on or about June 14, 2017, which granted defendants’
motion for summary judgment dismissing the complaint, unanimously
affirmed, without costs.
Plaintiff seeks, inter alia, a declaration that defendants’
failure to consider and appoint female persons on the eligible
list established from civil service examination number 3000 for
the civil service position of juvenile counselor in defendant New
York City Administration for Children’s Services (ACS) in January
2014 and March 2014 violated the State and City Human Rights Laws
(Executive Law § 296[1][a]; Administrative Code of City of NY §
8-107[1][a]).
19
Defendants established prima facie that their selective
hiring of male applicants as juvenile counselors did not violate
the Human Rights law because, pursuant to the Prison Rape
Elimination Act (PREA) (34 USC §§ 30301-09) and industry best
practices, sex is a bona fide occupational qualification (BFOQ)
for juvenile counselors, and no reasonable alternatives to the
preferential hiring of male counselors existed to protect the
privacy interests of male juvenile detainees (see Jennings v New
York State Off. of Mental Health, 786 F Supp 376, 380-381, 387
[SD NY 1992] [“The gender-based assignment policy strikes a
balance between the patients’ privacy interests and the right of
SHTAs (Security Hospital Treatment Assistants) to bid for
position. Thus, we find that the requirement that at least one
SHTA of the same gender as the patients be assigned to the ward
is permissible under Title VII (federal antidiscrimination
law)”], affd 977 F2d 731 [2d Cir 1992]; State Div. of Human
Rights v Oneida County Sheriff’s Dept., 119 AD2d 1006, 1006-1007
[4th Dept 1986] [“The uncontradicted testimony of the Sheriff was
that sergeants are required to conduct daily announced and
unannounced inspections of cellblock areas to monitor security
and sanitation conditions and, since inmates’ toilet and shower
facilities are in open view to personnel walking by the cells, it
20
would be a violation of the male inmates’ right to privacy to
have a woman monitoring their activities”], affd 70 NY2d 974, 976
[1988]).
In opposition, plaintiff failed to raise an issue of fact as
to the existence of reasonable alternatives to preferential male
hiring. Plaintiff contends that the objective of the January
2014 and March 2014 selective hiring was to save overtime
compensation, which is not sufficient to justify gender-based
hiring discrimination. However, the record demonstrates that
even the massive amounts of mandatory overtime imposed on male
counselors did not constitute a reasonable alternative to
selective hiring, because the shortages of male counselors still
at times forced ACS to assign female counselors to male residence
halls, without the required male counterparts, which resulted in
female counselors performing pat searches, in violation of the
PREA and best practices. Moreover, the mandatory overtime
contributed to a 65% attrition rate among male counselors during
the two years preceding the preferential hiring, which, combined
with the overtime, worsened morale and affected performance among
all counselors. Moreover, plaintiff failed to substantiate his
assertion that better scheduling of staff could have obviated the
21
need for huge amounts of mandatory overtime, and the record
belies his assertion that better recruitment could have solved
the problem of critical shortages of male counselors.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
22
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10878 The People of the State of New York, Ind. 216/16Respondent,
-against-
Toni Denise Green,Defendant-Appellant._________________________
Janet E. Sabel, The Legal Aid Society, New York (Heidi Bota ofcounsel), for appellant.
_________________________
Judgment, Supreme Court, New York County (Charles H.
Solomon, J.), rendered August 30, 2016, unanimously affirmed.
Application by defendant's counsel to withdraw as counsel is
granted (see Anders v California, 386 US 738 [1967]; People v
Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this
record and agree with defendant's assigned counsel that there are
no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may
apply for leave to appeal to the Court of Appeals by making
application to the Chief Judge of that Court and by submitting
such application to the Clerk of that Court or to a Justice of
the Appellate Division of the Supreme Court of this Department on
reasonable notice to the respondent within thirty (30) days after
service of a copy of this order.
23
Denial of the application for permission to appeal by the
judge or justice first applied to is final and no new application
may thereafter be made to any other judge or justice.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
24
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10880 The People of the State of New York, Ind. 826/18Respondent,
-against-
Daniel Ayala, Defendant-Appellant._________________________
Robert S. Dean, Center for Appellate Litigation, New York (AnjaliPathmanathan of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley ofcounsel), for respondent.
_________________________
Judgment, Supreme Court, Bronx County (George R. Villegas,
J.), rendered September 19, 2018, as amended September 24, 2018,
convicting defendant, upon his plea of guilty, of criminal
tampering in the first degree, and sentencing him to a term of
nine months, unanimously affirmed.
Defendant’s claim that his counsel rendered ineffective
assistance by failing to make certain motions addressed to the
indictment is unreviewable on direct appeal because it involves
matters not reflected in, or fully explained by, the record (see
People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d
998 [1982]), with particular reference to the strategic
considerations involved in counsel’s obtaining from the court a
favorable disposition of the charges without making the motions
25
at issue. Furthermore, aside from the issue of the
reasonableness of counsel’s conduct, the existing record does not
establish the prejudice prong of either a state or federal
ineffectiveness claim, because there is no indication that the
ultimate disposition would have been more favorable had counsel
made the pretrial motions at issue. Accordingly, since defendant
has not made a CPL 440.10 motion, the merits of the
ineffectiveness claims may not be addressed on appeal. In the
alternative, to the extent the existing record permits review, we
find that defendant received effective assistance under the state
and federal standards (see People v Benevento, 91 NY2d 708,
713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995];
Strickland v Washington, 466 US 668 [1984]).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
26
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10882 In re Jadelyn T. R., Dkt. NA-20021/18
A Child Under Eighteen Years of Age, etc.,
Terry O.,Respondent-Appellant,
Administration of Children’s Services,Petitioner-Respondent,
Elizabeth R.,Respondent._________________________
Steven N. Feinman, White Plains, for appellant.
James E. Johnson, Corporation Counsel, New York (Julia Bedell of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
_________________________
Order of fact-finding and disposition, Family Court, Bronx
County (Sarah P. Cooper, J.), entered on or about April 10, 2019,
which, inter alia, after a hearing, found that respondent was a
person legally responsible for the subject child and that he
sexually abused the child, unanimously affirmed, without costs.
Respondent’s argument that he was not a person legally
responsible for the child is unpreserved and, in any event, is
27
unavailing (see Matter of Alijah S. [Daniel S.], 133 AD3d 555,
556 [1st Dept 2015], lv denied 26 NY3d 917 [2016]; Family Ct Act
§ 1012[g]).
The finding of sexual abuse was supported by a preponderance
of the evidence (see Matter of N.D. [G.D.], 165 AD3d 416 [1st
Dept 2018]). There exists no basis to disturb the court’s
credibility determinations. Contrary to respondent’s argument,
the child’s testimony did not require corroboration (see Matter
of Kayla S. [Eddie S.], 146 AD3d 648 [1st Dept 2017]) and was in
fact consistent with the statements she made to the police and
the caseworker (see id.).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
28
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10883 The People of the State of New York, Ind. 2865/16Respondent,
-against-
Louis Thomas,Defendant-Appellant._________________________
Robert S. Dean, Center for Appellate Litigation, New York (JodyRatner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin ofcounsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, New York County(Curtis J. Farber, J.), rendered October 5, 2018,
Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,
It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
Counsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.
29
Kapnick, J.P., Gesmer, Oing, Singh, JJ.
10885 Thomas J. Cinquemani, et al., Index 150507/13Plaintiffs-Appellants,
-against-
Otis Elevator Company, et al.,Defendants-Respondents,
Boca Group East, LLC,Defendant._________________________
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac ofcounsel), for appellants.
Wiggin and Dana LLP, New York (Jonathan M. Freiman, Jr. of thebar of the State of Connecticut, admitted pro hac vice, ofcounsel), for respondents.
_________________________
Order, Supreme Court, New York County (Jennifer G. Schecter,
J.), entered February 26, 2018, which granted the motion of
defendants Otis Elevator Company and HLT NY Waldorf, LLC for
summary judgment dismissing the complaint as against them,
unanimously affirmed, without costs.
Defendants established their prima facie entitlement to
judgment as a matter of law in this action where plaintiff Thomas
Cinquemani alleges that he was injured when an elevator in the
Waldorf Astoria, where he worked, suddenly started jumping and
then free fell from the 42nd floor to the 3rd floor. Defendants
submitted evidence, including an expert affidavit and deposition
30
testimony of Otis’s elevator mechanic, demonstrating that
plaintiff’s account of how the elevator incident occurred was
electrically and mechanically impossible (see Espinal v
Trezechahn 1065 Ave. of the Ams., LLC, 94 AD3d 611, 613 [1st Dept
2012]; Hardy v Lojan Realty Corp., 303 AD2d 457 [2d Dept 2003];
compare Miller v Schindler El. Corp., 308 AD2d 312, 313 [1st Dept
2003]). Defendants also demonstrated lack of notice of any
defect that could have caused the incident, and that what had
occurred was an appropriate system activated shutdown.
In opposition, plaintiffs failed to raise a triable issue of
fact. Their expert’s statements that defendants were negligent
were conclusory and failed to rebut defendants’ showing that it
was impossible for the incident to have occurred in the manner
plaintiffs allege (see Forde v Vornado Realty Trust, 89 AD3d 678,
679 [2d Dept 2011]; compare Colon v New York City Hous. Auth.,
156 AD3d 406, 407 [1st Dept 2017]). Nor can plaintiffs rely on
the doctrine of res ipsa loquitur, as they failed to demonstrate
that the elevator stoppage in this case was the type of event
that would not ordinarily occur in the absence of negligence (see
Espinal at 614; Hardy at 457).
31
We have considered plaintiffs’ remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
32
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10886 The People of the State of New York, SCI 24/17Respondent,
-against-
Sunita Ramnath,Defendant-Appellant._________________________
Janet E. Sabel, The Legal Aid Society, New York (Harold V.Ferguson, Jr. of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Felicia A. Yancey ofcounsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, Bronx County(Mary V. Rosado, J. at plea; Julio Rodriguez III, J. atsentencing), rendered March 27, 2017,
Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,
It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
Counsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.
33
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10887 In re Former Police Officer Index 100604/18Richard DePamphilis,
Petitioner-Appellant,
-against-
James P. O’Neill, as Police Commissioner of the City of New York, et al.,
Respondents-Respondents._________________________
London & Worth, LLP, New York (Howard B. Sterinbach of counsel),for appellant.
James E. Johnson, Corporation Counsel, New York (Elizabeth I.Freedman of counsel), for respondents.
_________________________
Judgment, Supreme Court, New York County (Carol R. Edmead,
J.), entered January 24, 2019, denying the petition to annul
respondents’ determination, dated February 1, 2018, which denied
petitioner’s application for reinstatement to respondent New York
City Police Department (NYPD), and dismissing the proceeding
brought pursuant to CPLR article 78, unanimously affirmed,
without costs.
Petitioner pleaded guilty on March 12, 2010 to offering a
false instrument for filing in the second degree (Penal Law §
175.30). Because it involves willful deceit, this offense
constitutes a violation of the oath of office, and, pursuant to
Public Officers Law § 30, petitioner’s office was vacated
34
automatically upon his conviction (see Matter of Depamphilis v
Kelly, 107 AD3d 611 [1st Dept 2013]). Although his conviction
was vacated on September 29, 2017, petitioner did not
automatically regain the right to serve as a New York City police
officer (Public Officers Law § 30[1][e]). There is no right to
reinstatement; the decision to reinstate is within the sole
discretion of the Commissioner (see Matter of Hayes v Nigro, 165
AD3d 1134, 1135 [2d Dept 2018]).
Respondent Commissioner’s approval of the recommendation of
the Assistant Deputy Commissioner of Trials (ADCT) that
petitioner’s application for reinstatement be denied has a
rational basis in the record (see Matter of Pell v Board of Educ.
of Union Free School Dist. No. 1 of Towns of Scarsdale &
Mamaroneck, Westchester County, 34 NY2d 222 [1974]).
Notwithstanding the vacatur of petitioner’s plea, the ADCT
separately found that the hearing record established that
petitioner “engaged in conduct that was so egregious as to
militate against his reinstatement.”
Petitioner’s reliance on Administrative Code of City of NY §
13-256.1 is misplaced, as that section was not yet in effect when
petitioner’s employment with NYPD was terminated.
35
Contrary to petitioner’s argument, the hearing officer
considered his sympathetic circumstances, including his good work
and his financial hardship, but concluded that these factors did
not overcome the severity of his misconduct, i.e., an oath of
office offense (compare e.g. Matter of Vecchio v Kelly, 94 AD3d
545, 546 [1st Dept 2012] [matter remanded for determination of
new penalty, where police officer’s taking of nude photos of an
arrestee and rape victim, though “unseemly,” was aberration from
otherwise exemplary career, and termination would work extreme
hardship on family], lv denied 20 NY3d 855 [2013]; Matter of
McDougall v Scoppetta, 76 AD3d 338 [2d Dept 2010] [remanding for
lesser penalty, where firefighter with otherwise unblemished
career tested positive, once, for cocaine; penalty of loss of
pension and retirement benefits shocked sense of fairness],
appeal withdrawn 17 NY3d 902 [2011]).
Petitioner’s argument that the Commissioner should be
equitably estopped to deny his reinstatement is unavailing
(compare Matter of Sicignano v Cassano, 43 Misc 3d 1229[A], 2014
NY Slip OP 50730[U] [Sup Ct, Kings County 2014]). In Sicignano,
a firefighter with post-traumatic stress disorder facing
disciplinary charges after being found to have used cocaine was
restored to full duty and, while out on a call, sustained
36
injuries for which he likely would have been awarded a disability
retirement pension. The court ruled that he justifiably relied
on the fire department medical office’s determination of his duty
status, and that to deprive him of pension rights for a
disability resulting from his performance while on full duty
status would be manifestly unjust. In the instant matter, there
are no analogous circumstances mitigating against the denial of
reinstatement.
We have considered petitioner’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
37
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10889 In re Khadija Maatouk, et al., Index 152978/18Petitioners,
-against-
New York State Department of Motor Vehicles Safety and Business Hearing Bureau,
Respondent._________________________
Law Offices of Andrew J. Spinnell, LLC, New York (Andrew J.Spinnell of counsel), for petitioners.
Letitia James, Attorney General, New York (Mark S. Grube ofcounsel), for respondent.
_________________________
Determination of respondent, dated November 28, 2017, which,
after a hearing, revoked petitioners’ authorization to be a
driving school instructor and operate a driving school,
respectively, including under the Department of Motor Vehicles’
(DMV) Point and Insurance Reduction Program (PIRP), unanimously
confirmed, the petition denied, and the proceeding brought
pursuant to CPLR article 78 (transferred to this Court by order
of Supreme Court, New York County [Eileen A. Rakower, J.],
entered December 11, 2018) dismissed, without costs.
Petitioners were cited for violations of the Vehicle and
Traffic Law (VTL) and DMV regulations after an undercover monitor
registered for a six-hour PIRP course at their school, was not
38
provided instruction, and received a certificate of completing
the course. Petitioners submitted verification to their
sponsoring agency that the monitor completed the course.
The testimony of the monitor and the documentary evidence
submitted at the hearing constitute substantial evidence to
support the finding that petitioners engaged in “fraud or
fraudulent practices in relation to the business conducted under
the license” (VTL 394[5][d]; VTL 394[8][b][5]; see 300 Gramatan
Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180
[1978]). There exists no basis to disturb the ALJ’s decision to
credit the monitor’s testimony over the testimony presented by
petitioners (see Matter of Berenhaus v Ward, 70 NY2d 436, 443
[1987]).
Under the circumstances, the penalty imposed does not shock
one’s sense of fairness (see generally Matter of Pell v Board of
Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &
Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). A
driving school license and an instructor’s certificate may be
revoked where there is proven fraud (VTL 394[5][b], [8][b][5]),
and where a PIRP delivery agency’s approval is “suspended or
revoked . . ., all instructors and classroom operations of the
delivery agency will also be suspended or revoked” (15 NYCRR
39
138.9[c]). “[E]vidence of fraudulent conduct, standing alone, is
sufficient to uphold the penalty of revocation” (Matter of Kulik
v Zucker, 144 AD3d 1217, 1218 [3d Dept 2016] [internal quotation
marks omitted]).
Petitioners’ remaining contentions were not raised in the
administrative appeal and are unpreserved (see Matter of Peckham
v Calogero, 12 NY3d 424, 430 [2009]).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
40
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10890 Condor Capital Corp., Index 652700/17Plaintiff-Appellant,
-against-
CALS Investors, LLC,Defendant-Respondent,
XYZ Corp. 1-10,Defendants._________________________
Kirsch & Niehaus PLLC, New York (Paul R. Niehaus of counsel), forappellant.
Sidley Austin LLP, New York (Daniel Gimmel of counsel), forrespondent.
_________________________
Order, Supreme Court, New York County (Saliann Scarpulla,
J.), entered on June 8, 2018, which, inter alia, granted the
motion of defendant CALS Investors, LLC (defendant) to dismiss,
pursuant to CPLR 3211(a)(1) and (7), so much of the first cause
of action as alleged that defendant had breached the parties’
contract by failing to properly calculate the MOIC Target,
unanimously affirmed, with costs.
The parties’ contract defines MOIC Target as 115% of the
Target. In turn, Target is defined as the Closing Cash Purchase
Price; the parties agree that the Closing Cash Purchase Price was
$64,464,497.
41
Plaintiff contends that the MOIC Target should be 115% of
$20,389,153.90 because that is the amount defendant actually
invested, and MOIC means multiple of invested capital. However,
“a written agreement that is complete, clear and unambiguous on
its face must be enforced according to the plain meaning of its
terms” (Ellington v EMI Music, Inc., 24 NY3d 239, 245 [2014]
[internal quotation marks omitted]). The definition of “MOIC
Target” is unambiguous. Contrary to plaintiff’s contention,
enforcing the definition as written does not “produce a result
that is absurd, commercially unreasonable or contrary to the
reasonable expectations of the parties” (Matter of Lipper
Holdings v Trident Holdings, 1 AD3d 170, 171 [1st Dept 2003]
[internal citations omitted]).
The IAS court providently exercised its discretion by not
converting defendant’s motion into a summary judgment motion (see
Lerner v Prince, 119 AD3d 122, 131 [1st Dept 2014]). “Where the
terms of a contract are clear and unambiguous, the intent of the
parties must be found within the four corners of the contract”
(Ellington, 24 NY3d at 244). Discovery is unnecessary because
“[a]ny such discovery would simply be an opportunity for
42
plaintiff to uncover parol evidence to attempt to create an
ambiguity in an otherwise clear and unambiguous agreement” (RM
Realty Holdings Corp. v Moore, 64 AD3d 434, 437 [1st Dept 2009]
[emphasis omitted]).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
43
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10891N Charles Cusumano, et al., Index 100948/13Plaintiffs-Respondents,
-against-
Riley Land Surveyors, LLP, et al.,Defendants,
Northwoods Abstract, Ltd.,Defendant-Appellant._________________________
The Katsorhis Law Firm, P.C., Flushing (Jeffrey P. Brodsky ofcounsel), for appellant.
The Law Office of Joshua D. Spitalnik, P.C., Roslyn (Joshua D.Spitalnik of counsel), for respondents.
_________________________
Order, Supreme Court, New York County (W. Franc Perry, J.),
entered May 9, 2018, which granted plaintiff’s motion to confirm
the report and recommendation of the Special Referee finding,
after a traverse hearing, that service of process commencing the
action was properly made, and denied defendant Northwoods
Abstract Ltd.’s motions to reject the Special Referee’s report
and recommendation and to vacate the default judgment entered
against it, unanimously affirmed, without costs.
The summons with notice served on defendant met the
requirements of CPLR 305(b) by stating that the action sought “to
recover damages for contract damages and fraud” and that in the
44
event of default a money judgment would be entered against
defendant in the amount of $750,000 (see U.S. Bank N.A. v
GreenPoint Mtge. Funding, Inc., 147 AD3d 79, 88 [1st Dept 2016],
appeal withdrawn 32 NY3d 1123 [2018]; see also Rowell v Gould,
Inc., 124 AD2d 995, 996 [4th Dept 1986]).
Defendant’s argument that the summons is unclear as to
whether the claims are asserted by one or both plaintiffs is
unaccompanied by an explanation of the obstacle this presents to
its preparing a defense, and is therefore unavailing. Also
unavailing is defendant’s argument that the transcript of the
inquest throws the nature of plaintiffs’ claims into confusion.
The very brief discussion of the nature of the issues reflected
in the transcript does not conflict with the statement in the
summons with notice of the nature of the action and the relief
sought.
Defendant is correct that non-attorney plaintiff Cusumano’s
appearance on behalf of plaintiff Soares (his significant other)
as well as himself could be construed as the unauthorized
practice of law (see e.g. People ex rel. Field v Cronshaw, 138
AD2d 765 [2d Dept 1988], appeal dismissed 72 NY2d 872 [1988];
Blunt v Northern Oneida County Landfill [NOCO], 145 AD2d 913, 914
[4th Dept 1988]). However, defendant failed to establish that
45
this is a basis for disturbing the order on appeal, since, as
defendant notes, the only action Cusumano took in the guise of
acting as Soares’s attorney was to sign the summons with notice;
thereafter, he and Soares retained counsel.
Defendant failed to demonstrate a reasonable excuse for its
default (see CPLR 5015[a][1]). Even assuming a misunderstanding
between counsel and defendant’s president Agruso as to who was
handling the litigation, Agruso’s failure to follow up with
counsel in any respect, or to ensure that counsel received the
email he claims to have sent in 2014 (of which there is no proof
in the record) informing him that the insurer had declined to
take the case, is not reasonable. Nor is defendant’s failure to
appear at the inquest reasonable. Although plaintiffs’ counsel
would not agree to an adjournment, defendant could have requested
relief from the court, rather than wait until the conclusion of
proceedings to seek to undo them.
In the absence of a reasonable excuse for the default, we
need not determine whether defendant demonstrated a meritorious
defense (Galaxy Gen. Contr. Corp v 2201 7th Ave. Realty LLC, 95
AD3d 789, 790 [1st Dept 2012]). Were we to do so, we would find
that defendant failed to demonstrate a meritorious defense.
Defendant argues that it lacked a contractual relationship with
46
plaintiffs, and the record is unclear as to the scope of its
obligations to plaintiffs. However, defendant does not deny that
it was retained to perform services by plaintiffs’ counsel, that,
at closing, plaintiffs paid it $22,282 and that, in keeping with
its role as liaison between plaintiffs and the surveyor, it
remitted $1,485 of that amount to the surveyor.
Defendant failed to demonstrate that the default judgment
should be vacated on the grounds of fraud, misrepresentation, or
other misconduct, pursuant to CPLR 5015(a)(3).
To the extent defendant’s arguments for rejecting the
Special Referee’s report and recommendation are directed to the
Special Referee’s credibility findings, we defer to those
findings (see Terrastone Audubon, L.P. v Blair Ventures, LLC, 160
AD3d 526, 527-528 [1st Dept 2018]).
We have considered defendant’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
47
Kapnick, J.P., Oing, Singh, Moulton, JJ.
10892N- Index 650205/1110892NA- 950354/1310892NB Rosemarie A. Herman, etc., et al.,
Plaintiffs-Respondents,
-against-
Julian Maurice Herman, et al., Defendants-Appellants.
Michael Offit, et al.,Defendants.
- - - - -[And a Third Party-Action]
_________________________
Boies Schiller Flexner LLP, Armonk (Nicholas Gravante, Jr. ofcounsel), for appellants.
Jaspan Schlesinger LLP, Garden City (Steven R. Schlesinger ofcounsel), for respondents.
_________________________
Orders, Supreme Court, New York County (Jennifer G.
Schecter, J.), entered August 31, 2018, on or about October 16,
2018, and on or about November 20, 2018, which, to the extent
appealed from as limited by the briefs, denied defendants’ motion
pursuant to CPLR 5015(a)(2) to vacate a judgment, granted
plaintiffs’ motion to appoint a receiver, and directed the
receiver to execute a deed transferring defendant Julian Maurice
Herman’s (Maurice) interest in the subject property to the trust
48
created by plaintiff Rosemarie Herman (Rosemarie) in 1991,
unanimously affirmed, with costs.
In support of their motion to vacate the judgment under CPLR
5015(a)(2), defendants failed to demonstrate that their newly
discovered evidence (i.e., an affidavit from the parties’ uncle)
could not have been found earlier with due diligence, was
material, and would probably have produced a different result
(see Olwine, Connelly, Chase, O'Donnell & Weyher v Valsan, Inc.,
226 AD2d 102, 103 [1st Dept 1996]), since Maurice’s answer,
including his statute of limitations defense, had previously been
stricken due to his repeated discovery violations and misconduct
(see Herman v Herman, 134 AD3d 442 [1st Dept 2015].
The court also properly exercised its discretion in
appointing a receiver to transfer Maurice’s interest in the
property at issue to the trust created by Rosemarie in 1991 to at
least partially satisfy the outstanding judgment of over
$100,000,000 (see CPLR 5228(a); Hotel 71 Mezz Lender LLC v Falor,
14 NY3d 303, 317 [2010]).
49
We have considered defendants’ remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
50
Friedman, J.P., Webber, Kern, González, JJ.
10893 The People of the State of New York, Ind. 1204/17Respondent,
-against-
Robert Schuman,Defendant-Appellant._________________________
Colson Law PLLC, New York (Deborah A. Colson of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
_________________________
Judgment, Supreme Court, New York County (Diane Kiesel, J.),
rendered February 22, 2019, convicting defendant, after a jury
trial, of assault in the second degree and criminally negligent
homicide, and sentencing him to an aggregate term of three years,
unanimously affirmed.
The verdict was not against the weight of the evidence (see
People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no
basis for disturbing the jury’s determinations concerning
credibility and the evaluation of expert testimony. The
evidence, including videotapes and eyewitness testimony, supports
51
the inference that defendant knew that his vehicle struck a
pedestrian, and that the vehicle was dragging the victim as
defendant drove away.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
52
Friedman, J.P., Webber, Kern, González, JJ.
10894N Elyass Eshaghian, Index 652577/12Plaintiff-Respondent,
Baruch LLC,Plaintiff,
-against-
Asher Roshanzamir,Defendant-Appellant.
- - - - -Michael Roshanzamir,
Intervenor-Defendant.- - - - -
Lawrence A. Mandelker, Escrow Agent._________________________
Wolf Haldenstein Adler Freeman & Herz LLP, New York (DanielTepper of counsel), for appellant.
Wilk Auslander LLP, New York (Stuart M. Riback of counsel), forrespondent.
_________________________
Order, Supreme Court, New York County (Charles E. Ramos,
J.), entered October 22, 2018, which, to the extent appealed
from, directed the parties’ escrow agent to distribute the
entirety of the remaining escrow funds in the amount of
$171,515.00 to plaintiff Elyass Eshaghian, unanimously reversed,
on the law, with costs, and the relevant parties directed to
return said funds to escrow pending further proceedings.
53
It is clear from a plain reading of paragraph 9 of the
settlement agreement that the holdback provision was intended for
the sole purpose of apportioning the building’s net income for
the three-month period between September 1, 2016 and closing, and
nothing more (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162
[1990]). The holdback provision is the only provision within
paragraph 9 providing for the placement of funds in escrow, as
well as the only provision providing that it was to “survive
closing.” Unlike the net income adjustment, the sole remedy for
any claim against Asher Roshanzamir for a reduction of the
purchase price based on an alleged mortgage deficiency was to sue
him on the settlement agreement (see e.g. CBS Inc. v Ziff-Davis
Publ. Co., 75 NY2d 496 [1990]).
The language of paragraph 9(a) also confirms that the
settlement agreement should not allow for all post-closing
adjustments to be charged against the holdback. Specifically,
paragraph 9(a) provides that in the event of a mortgage
deficiency there was an adjustment to be made to the “Purchase
Price.” However, “Purchase Price” and “Additional Consideration”
are specifically defined terms, referring to distinct categories
of money separate from the holdback. Indeed, Asher Roshanzamir
paid Eshaghian the $6 million “Purchase Price” and the $2 million
54
“Additional Consideration” at closing, net of adjustments. It
necessarily follows that ordinary “adjustments” to the “Purchase
Price” were not to be made after the closing.
We have considered plaintiff’s remaining contentions and
find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
55
Friedman, J.P., Webber, Kern, González, JJ.
10895 In re Malachi O. B., Dkt. B-2376/17
A Child Under Eighteen Years of Age, etc.,
Keneta K. B.,Respondent-Appellant,
The Children's Aid Society,Petitioner-Respondent._________________________
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel ofcounsel), for appellant.
Rosin Steinhagen Mendel PLLC, New York (Marion C. Perry ofcounsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (ShirimNothenberg of counsel), attorney for the child.
_________________________
Purported appeal from a decision, Family Court, New York
County (Emily M. Olshansky, J.), entered on or about December 19,
2018, which denied respondent mother’s motion to vacate her
default, deemed a premature notice of appeal (see CPLR 5520[c];
Matter of Jeremiah D. [Deon D.], 155 AD3d 414 [1st Dept 2017])
from the order, same court and Judge, entered on or about January
10, 2019, and, so considered, said order, unanimously affirmed,
without costs.
The court properly denied the mother’s motion to vacate her
default. The mother’s assertion that she missed the fact-finding
56
and dispositional hearings because she did not know when the
fact-finding hearing was scheduled to commence was not a
reasonable excuse for her failure to appear. There is no dispute
that she and her counsel were present when the date for the
hearing was selected (see Matter of Roberto O. [Lakeysha H.], 166
AD3d 435, 435-436 [1st Dept 2018]; CPLR 5015[a][1]). Although
the mother averred in her affidavit that at some point in mid-
September 2018, a caseworker told her that the hearing would
begin in November 2018, she does not explain why she did not
ascertain or confirm the hearing date by contacting her counsel,
the agency or the court (see Matter of Yadori Marie F. [Osvaldo
F.], 111 AD3d 418, 419 [1st Dept 2013]).
In light of the mother’s failure to establish a reasonable
excuse for her nonappearance for the November 8, 2018 hearing,
this Court need not determine whether she established a
57
meritorious defense to the permanent neglect petition (see Matter
of Michael P., 165 AD3d 497, 498 [1st Dept 2018], lv denied 32
NY3d 1135 [2019]). In any event, the record establishes that she
did not set forth a meritorious defense.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
58
Friedman, J.P., Webber, Kern, González, JJ.
10896 Stanley John, et al., Index 805256/17Plaintiffs-Appellants,
-against-
Darryl C. De Vivo, M.D., et al.,Defendants-Respondents,
Moris Angulo, M.D., et al.,Defendants._________________________
Jonathan C. Reiter Law Firm, PLLC, New York (Jonathan C. Reiterof counsel), for appellants.
Bartlett LLP, Garden City (Robert G. Vizza of counsel), forrespondents.
_________________________
Order, Supreme Court, New York County (Judith N. McMahon,
J.), entered December 10, 2018, which granted defendants-
respondents’ motion to dismiss the causes of action asserted on
behalf of infant plaintiff A.D.J., unanimously affirmed, without
costs.
To the extent the complaint alleges that if plaintiffs had
known that their subsequent children would be afflicted with the
same condition as the infant A.J., they would not have conceived
A.D.J. or would have had A.D.J. genetically screened for
abnormalities before he was carried to term, it fails to state a
cause of action on behalf of A.D.J. because an impaired infant
59
has no claim for wrongful life or wrongful birth (Alquijay v St.
Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978 [1984]; B.F. v
Reproductive Medicine Assoc. of N.Y., LLP, 136 AD3d 73, 76 [1st
Dept 2015], affd 30 NY3d 608 [2017]). To the extent plaintiffs
argue that A.D.J.’s causes of action are actually predicated on
the theory that the advice that defendants gave to plaintiffs led
directly to the delayed diagnosis and treatment of A.D.J.’s
condition, and its consequent progression and worsening, the
theory does not establish a malpractice cause of action, because
defendants did not owe A.D.J. a duty when treating his older
brother years before A.D.J. was conceived and born (see Enright v
Eli Lilly & Co., 77 NY2d 377, 389 [1991], cert denied 502 US 868
[1991], citing Albala v City of New York, 54 NY2d 269 [1981]).
Under the circumstances, defendants who treated A.D.J.’s older
60
brother owed no duty of care to A.D.J. (cf. Tenuto v Lederle
Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 612 [1997]
[physician’s duty of care expanded to nonpatient father whose
infant received live polio vaccine but who was not advised of
risks to himself of possible infection from vaccine]).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
61
Friedman, J.P., Webber, Kern, González, JJ.
10898 The People of the State of New York, Ind. 4441/04Respondent,
-against-
Juan Taveras,Defendant-Appellant._________________________
Janet E. Sabel, The Legal Aid Society, New York (Arthur H.Hopkirk of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J.Yetter of counsel), for respondent.
_________________________
Order, Supreme Court, New York County (Rena K. Uviller, J.),
entered on or about May 9, 2013, which adjudicated defendant a
risk level three sex offender pursuant to the Sex Offender
Registration Act (Correction Law art 6-C), unanimously affirmed,
without costs.
The court properly assessed 20 points for defendant’s
unsatisfactory conduct while confined. Based on our own review
of the entire record (see People v Larkin, 66 AD3d 592, 593 [1st
Dept 2009], lv denied 14 NY3d 704 [2010], we find that clear and
convincing evidence established the underlying facts of the
disciplinary infraction at issue.
In any event, regardless of whether defendant’s correct
point score is 135 or 115 points, he remains a level three
62
offender, and we find no basis for a downward departure (see
People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating
factors that were not adequately taken into account by the risk
assessment instrument, or outweighed by the extent and
egregiousness of the underlying crimes, which are summarized in
the decision on defendant’s criminal appeal (People v Taveras, 12
NY3d 21, 23-24 [2009]).
We have considered and rejected defendant’s remaining
arguments, including his request for a remand for further
proceedings.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
63
Friedman, J.P., Webber, Kern, González, JJ.
10899 The People of the State of New York, Ind. 796/13Respondent,
-against-
Franklin Garrett,Defendant-Appellant._________________________
Janet E. Sabel, The Legal Aid Society, New York (Kristina Schwarzof counsel), for appellant.
_________________________
Judgment, Supreme Court, New York County (Jill Konviser,
J.), rendered September 1, 2015, unanimously affirmed.
Application by defendant's counsel to withdraw as counsel is
granted (see Anders v California, 386 US 738 [1967]; People v
Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this
record and agree with defendant's assigned counsel that there are
no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may
apply for leave to appeal to the Court of Appeals by making
application to the Chief Judge of that Court and by submitting
such application to the Clerk of that Court or to a Justice of
the Appellate Division of the Supreme Court of this Department on
reasonable notice to the respondent within thirty (30) days after
service of a copy of this order.
64
Denial of the application for permission to appeal by the
judge or justice first applied to is final and no new application
may thereafter be made to any other judge or justice.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
65
Friedman, J.P., Webber, Kern, González, JJ.
10900 Abel Sotarriba, Index 113027/11Plaintiff-Respondent-Appellant,
-against-
346 West 17th Street LLC, et al.,Defendants-Respondents-Appellants.
- - - - -346 West 17th Street LLC, et al.,
Third-Party Plaintiffs-Respondents-Appellants,
-against-
Sigma Electric, Inc.,Third-Party Defendant-Respondent-Appellant
- - - - -Sigma Electric, Inc.,
Second Third-Party Plaintiff-Respondent-Appellant.
-against-
Technetek Ltd.,Second Third-Party Defendant-Appellant-Respondent._________________________
Goetz Schenker Blee & Wiederhorn LLP, New York (Lisa De Lindsayof counsel), for appellant-respondent.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel),for Abel Sotarriba, respondent-appellant.
Ahmuty Demers & McManus, Albertson (Nicholas P. Calabria ofcounsel), for 346 West 17th Street LLC, Northquay Properties, LLCand McGowan Builders, Inc., respondents-appellants.
Litchfield Cavo LLP, New York (Nadia Del Toro of counsel), forSigma Electric, Inc., respondent-appellant.
_________________________
66
Order, Supreme Court, New York County (Carmen Victoria St.
George, J.), entered March 7, 2019, which granted plaintiff’s
motion for partial summary judgment on the Labor Law § 240(1)
claim, granted defendants’ motion for summary judgment dismissing
the Labor Law §§ 200 and 241(6) and common-law negligence claims,
granted third-party defendant’s (Sigma) motion for summary
judgment dismissing the third-party complaint, and denied second
third-party defendant’s (Technetek) motion for summary judgment
dismissing the second third-party complaint and all cross claims
against it, unanimously modified, on the law, to deny defendants’
motion as to the Labor Law § 241(6) claim insofar as it is
predicated on Industrial Code § 23-1.7(b)(1) and as to the Labor
Law § 200 and common-law negligence claims as against defendant
McGowan Builders Inc. (McGowan), and to grant Technetek’s motion,
and otherwise affirmed, without costs.
Plaintiff, an electrical worker on a construction site,
sustained serious injuries, including traumatic brain injuries,
when he fell through an unprotected stairwell opening from the
third floor to the second floor of the building in which he was
working and struck the concrete floor.
The court correctly granted plaintiff summary judgment as to
liability on the Labor Law § 240(1) claim. Regardless of whether
67
plaintiff fell off a ladder, as he claims, or lost his balance
while climbing over a four-foot-high barricade blocking access to
the stairwell, as defendants contend, he was not provided with
adequate protection to prevent his fall into the unguarded
stairwell opening (see Nascimento v Bridgehampton Constr. Corp.,
86 AD3d 189, 191 [1st Dept 2011]; Leconte v 80 E. End Owners
Corp., 80 AD3d 669, 671 [2d Dept 2011]). Contrary to defendants’
contention, plaintiff was not the sole proximate cause of his
injuries in their version of the facts. Even if plaintiff were
negligent for choosing to climb over the barricade, his
negligence would only raise an issue as to comparative
negligence, which is not a defense to a Labor Law § 240(1) claim
(Stolt v General Foods Corp., 81 NY2d 918 [1993]; Stankey v
Tishman Constr. Corp. of N.Y., 131 AD3d 430 [1st Dept 2015]).
The Labor Law § 241(6) claim should not be dismissed insofar
as it is predicated on Industrial Code (12 NYCRR) § 23-1.7(b)(1).
The stairwell opening constitutes a “hazardous opening” within
the meaning of that regulation (see Messina v City of New York,
300 AD2d 121, 123 [1st Dept 2002]). 12 NYCRR 23-1.7(f) is
inapplicable because the subject stairway was not being used as a
“means of access” to the work areas, and 12 NYCRR 23-1.22(c) is
inapplicable because the stairwell was not a platform “used to
68
transport vehicular and/or pedestrian traffic” (Dzieran v 1800
Boston Rd., LLC, 25 AD3d 336, 338 [1st Dept 2006]).
The Labor Law § 200 and common-law negligence claims should
not be dismissed against defendant McGowan. Plaintiff’s accident
was the result of a lack of proper fall protection, i.e., his
injuries were caused by the manner and means of the work, and
McGowan, the general contractor, is liable for those injuries if
it exercised supervisory control over the work (see Cappabianca v
Skanska USA Bldg. Inc., 99 AD3d 139, 144 [1st Dept 2012]). While
the record demonstrates that McGowan had no authority to exercise
supervisory control over plaintiff’s use of the ladder, it
presents an issue of fact as to whether McGowan had such
authority over the proper barricading of the stairwell. The fact
that Technetek was charged with installing and maintaining the
barricades does not necessarily mean that McGowan lacked that
authority (see Ross v Curtis–Palmer Hydro–Elec. Co., 81 NY2d 494,
505-506 [1993]).
The court correctly dismissed defendants’ claims for
contribution and common-law indemnification against Sigma. Its
finding that plaintiff did not sustain a “grave injury” under
Workers’ Compensation Law § 11 necessarily precludes defendants
from arguing at trial that plaintiff sustained “an acquired
69
injury to the brain caused by an external physical force
resulting in permanent total disability” (id.). The medical
evidence supports the finding that there was no “grave injury,”
including a “total permanent disability.” Indeed, plaintiff’s
own treating physicians did not find “unemployability in any
capacity” (Rubeis v Aqua Club, Inc., 3 NY3d 408, 417 [2004]
[emphasis deleted]).
Technetek is entitled to the summary dismissal of Sigma’s
claims and defendants’ cross claims for contribution and common-
law indemnification against it, because there is no basis on
which to impose tort liability against it in favor of plaintiff
(see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]).
The record presents no issues of fact as to whether Technetek
negligently created or exacerbated a dangerous condition so as to
have launched a force or instrument of harm (see id. at 141-142).
Although Technetek was responsible for the installation and
maintenance of barricades, the barricades were meant to serve as
a visual warning that the stairwell was off-limits, not as a fall
prevention device. Thus, Technetek did what it was contractually
required to do by erecting the barricade. Plaintiff’s injuring
himself while climbing over it does not raise an issue of fact as
to whether Technetek caused, created, or exacerbated a dangerous
70
condition (see Miller v City of New York, 100 AD3d 561, 561 [1st
Dept 2012]; Rodriquez v E&P Assoc., 71 AD3d 405 [1st Dept 2010]).
To the extent plaintiff claims, in his version of the facts, that
no barrier was in place at the time of his accident, any failure
by Technetek to erect a barrier did not exacerbate a dangerous
condition but consisted “merely in withholding a benefit . . .
where inaction is at most a refusal to become an instrument for
good” (Church v Callanan Indus., 99 NY2d 104, 112 [2002]
[internal quotation marks omitted]).
The record also demonstrates that Technetek did not entirely
displace defendants’ duty to maintain the premises safely (see
Espinal, 98 NY2d at 141). McGowan’s project manager testified
that McGowan’s superintendents and foreman had the authority to
address safety issues, and regularly walked the project site to
inspect for safety; he also acknowledged that it was “more likely
than not” McGowan that directed that barricades be erected.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
71
Friedman, J.P., Webber, Kern, González, JJ.
10901 In re Bronx Liquor & Wine Inc., Index 100946/19Petitioner,
-against-
New York State Liquor Authority,Respondent._________________________
Mehler & Buscemi, New York (Martin P. Mehler of counsel), forpetitioner.
Gary Meyerhoff, New York (Stefan M. Armstrong of counsel), forrespondent.
_________________________
Determination of respondent New York State Liquor Authority
(Authority), dated May 29, 2019, after a hearing, finding that
petitioner violated Alcoholic Beverage Control Law § 105(12) by
selling liquor in case and multi-case lots to a customer despite
having only a retail license, and imposing a civil penalty in the
amount of $10,000, or in the alternative, cancelling petitioner’s
off-premises liquor license, unanimously confirmed, the petition
denied, and the proceeding brought pursuant to CPLR article 78
(transferred to this Court by order of Supreme Court, New York
County [John J. Kelley, J.]), entered August 1, 2019, dismissed,
without costs.
The determination that petitioner violated § 105(12) is
supported by substantial evidence, as the record shows that
72
petitioner had “reasonable cause to believe” that it was selling
alcoholic beverages to a reseller (see generally 300 Gramatan
Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180
[1978]). There exists no basis to disturb the credibility
determinations of the ALJ (see Matter of Café La China Corp. v
New York State Liq. Auth., 43 AD3d 280, 281 [1st Dept 2007]).
Here, the record, which includes the parties’ stipulated
facts, as well as the testimony of petitioner’s manager and the
Authority’s investigator, shows that petitioner produced receipts
for 140 separate sales to the subject customer, which totaled
more than $100,000 over the course of less than one year.
Although petitioner’s manager stated that the average customer
spent $2,000 to $3,000 per month, that it was not unusual for a
customer to spend the amount that the subject customer spent in a
month and that she did not know that the customer owned a
nightclub, the ALJ considered the lack of corroboration, the
manager’s status as an interested witness, and the lack of record
keeping, when rationally inferring that petitioner had
“reasonable cause to believe” that the subject customer was
acquiring the alcohol for the purpose of reselling it (Alcoholic
Beverage Control Law § 105[12]).
73
Furthermore, based on the stipulated fact that petitioner
averaged sales of $1.5 million monthly and $18 million annually,
a $10,000 civil penalty does not shock one’s sense of fairness
(see generally Matter of Pell v Board of Educ. of Union Free
School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 NY2d 222, 233 [1974]; see Alcoholic
Beverage Control Law § 17[3]).
We have considered petitioner’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
74
Friedman, J.P., Webber, Kern, González, JJ.
10902 In re Department of Social Dkt. P-6873/17Services, etc.,
Petitioner-Respondent,
-against-
Donald A.C.,Respondent-Appellant._________________________
The Law Offices of Salihah R. Denman, PLLC, Harrison (Salihah R.Denman of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Elizabeth I.Freedman of counsel), for respondent.
Bruce A. Young, New York, attorney for the child._________________________
Order, Family Court, New York County (Adam Silvera, J.),
entered on or about May 10, 2018, which, after a hearing,
estopped respondent from obtaining a genetic markings test, and,
by separate order of filiation, adjudged and declared him the
father of the subject child, unanimously affirmed, without costs.
Family Court properly determined that equitable estoppel
prevented respondent from challenging his paternity of the
subject child with DNA testing (see Family Court Act § 532[a]).
Clear and convincing evidence demonstrates that respondent, who
does not deny that he is the biological father of the subject
child’s older and younger brothers, also held himself out as her
75
father (see Matter of Shondel J. v Mark D., 7 NY3d 320, 326-327
[2006]). The child calls respondent “Daddy” and has a familial
relationship with his parents and relatives. Respondent was
present at the hospital shortly after the child was born,
attended her birthday parties, and bought her gifts and clothing.
Accordingly, even if the parent-child relationship was limited as
he claims, it was in the child’s best interests to estop
respondent from disputing paternity (Matter of Glenda G. v
Mariano M., 62 AD3d 536 [1st Dept 2009], lv denied 13 NY3d 708
[2009]; see Matter of Smythe v Worley, 72 AD3d 977 [2d Dept
2010]). Issues of credibility were for the Family Court to
resolve, and there is no basis to disturb its determination to
credit the testimony of the mother and reject respondent’s
testimony as “incredible” (see Matter of Commissioner of Social
Servs. v Dwayne W., 146 AD3d 718, 719 [1st Dept 2017]).
To the extent respondent contends that he is not the subject
child’s biological father, such argument is irrelevant. The
court did not rely on evidence relating to biological parenthood,
but resolved the petition based on equitable estoppel, which is
76
made “irrespective of biological fatherhood” in accordance with
the legislature’s “deliberate policy choice” (Shondel, 7 NY3d at
330).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
77
Friedman, J.P., Webber, Kern, González, JJ.
10903 WG Three Associates, LLC, Index 150739/17Plaintiff-Appellant,
-against-
Portofino Chelsea, LLC, et al., Defendants-Respondents.
_________________________
Gordon & Gordon, P.C., Brooklyn (Jason S. Matuskiewicz ofcounsel), for appellant.
Norman A. Olch, New York, for respondents._________________________
Appeal from order, Supreme Court, New York County (Andrew
Borrok, J.), entered on or about August 10, 2018, after a nonjury
trial, deemed appeal from judgment, same court and Justice,
entered August 17, 2018, in defendant’s favor, and, so
considered, said judgment unanimously affirmed, without costs.
The trial court’s determination that plaintiff landlord
unreasonably withheld its consent to defendant tenant’s proposed
assignment of the lease is supported by the evidence that
plaintiff offered to lease the premises directly to the proposed
assignee at a higher rent. Plaintiff also failed to present
evidence substantiating its claim that it rejected the assignment
because the proposed assignee was not financially capable of
78
assuming the lease (see New Stadium LLC v Greenpoint-Goldman
Corp., 44 AD3d 449 [1st Dept 2007]).
Contrary to plaintiff’s contention, defendants are entitled
to damages for the amounts paid after plaintiff unreasonably
withheld its consent to the assignment (see Arlu Assoc. v Rosner,
14 AD2d 272, 275 [1st Dept 1961], affd 12 NY2d 693 [1962]; see
also 406 Broome St Rest Inc. v Lafayette Ctr., LLC, 149 AD3d 598
[1st Dept 2017]).
We have considered plaintiff’s remaining contentions and
find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
79
Friedman, J.P., Webber, Kern, González, JJ.
10904 The People of the State of New York, Ind. 430/15Respondent,
-against-
Christopher Hinojosa,Defendant-Appellant._________________________
Janet E. Sabel, The Legal Aid Society, New York (Heidi Bota ofcounsel), for appellant.
_________________________
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.),
rendered October 11, 2016, unanimously affirmed.
Application by defendant's counsel to withdraw as counsel is
granted (see Anders v California, 386 US 738 [1967]; People v
Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this
record and agree with defendant's assigned counsel that there are
no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may
apply for leave to appeal to the Court of Appeals by making
application to the Chief Judge of that Court and by submitting
such application to the Clerk of that Court or to a Justice of
the Appellate Division of the Supreme Court of this Department on
reasonable notice to the respondent within thirty (30) days after
service of a copy of this order.
80
Denial of the application for permission to appeal by the
judge or justice first applied to is final and no new application
may thereafter be made to any other judge or justice.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
81
Friedman, J.P., Webber, Kern, González, JJ.
10905 The People of the State of New York, Ind. 3234/16Respondent,
-against-
Juan Barreto,Defendant-Appellant._________________________
Robert S. Dean, Center for Appellate Litigation, New York (JodyRatner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, New York County(Charles H. Solomon, J.), rendered February 21, 2017,
Said appeals having been argued by counsel for therespective parties, due deliberation having been had thereon, andfinding the sentence not excessive,
It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
Counsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.
82
Friedman, J.P., Webber, Kern, González, JJ.
10906 Steven D. Sladkus, Index 151712/16Plaintiff-Respondent-Appellant,
-against-
Melanie Englese also known asMelanie Sisskind,
Defendant-Appellant-Respondent._________________________
Appeals having been taken to this Court by the above-namedappellants from an order of the Supreme Court, New York County(Carmen Victoria St. George, J.), entered on or about April 25,2018,
And said appeals having been withdrawn before argument bycounsel for the respective parties; and upon the stipulation ofthe parties hereto dated January 7, 2020,
It is unanimously ordered that said appeal be and the sameare hereby withdrawn in accordance with the terms of theaforesaid stipulation.
ENTERED: JANUARY 28, 2020
_______________________CLERK
83
Friedman, J.P., Webber, Kern, González, JJ.
10907 Mark Joseph Danis, Index 150098/12Plaintiff-Appellant,
-against-
John C. Food Corp., improperly pleaded as McDonald’s Restaurant, et al.,
Defendants,
New York City Transit Authority, et al.,Defendants-Respondents._________________________
Law Offices of Rosemarie Arnold, New York (Paige R. Butler ofcounsel), for appellant.
Lawrence Heisler, New York City Transit Authority, Brooklyn(Harriet Wong of counsel), for respondents.
_________________________
Order, Supreme Court, New York County (Lisa A. Sokoloff,
J.), entered October 1, 2018, which, to the extent appealed from,
granted the motion of defendants New York City Transit Authority
and Metropolitan Transportation Authority (collectively NYCTA)
for summary judgment dismissing the complaint as against them,
unanimously affirmed, without costs.
Plaintiff alleges that he consumed contaminated food at
defendant John C. Food Corp.’s McDonald’s restaurant. Several
hours later, he began to feel nauseous and boarded a crowded
subway train to head home. While on the train, he felt very sick
and decided to get off the train. After exiting the train and
84
while on the platform, he leaned over a railing so as to take
deep breaths, but while doing so, he lost consciousness and fell
on his back. When he fell his left leg extended beyond the
platform and became caught in the cables linking the subway cars
on the train he had just exited. While extricating his leg from
the cables, the train was moving and he sustained a fractured
left leg.
NYCTA established prima facie entitlement to summary
judgment, as it sufficiently showed that it did not breach a duty
of care to plaintiff (see Bethel v New York City Tr. Auth., 92
NY2d 348, 356 [1998]). Plaintiff’s deposition testimony suggests
that the train was already in motion when he fell unconscious.
Thus, the train conductor would have had no knowledge of
plaintiff’s position on the subway platform even after performing
a precautionary visual sweep of the platform before signaling for
the operator to proceed. Plaintiff’s contradictory statements in
his affidavit, drafted about four years later, cannot cure
defects in his deposition testimony, and are insufficient to
raise a triable issue of fact (see Mermelstein v East Winds Co.,
136 AD3d 505 [1st Dept 2016]; see also Telfeyan v City of New
York, 40 AD3d 372, 373 [1st Dept 2007]).
85
We have considered the remaining arguments and find them
unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
86
Friedman, J.P., Webber, Kern, González, JJ.
10908 Elayne Zinbarg, Index 653265/16Plaintiff-Respondent,
-against-
Professional Business College, Inc. doing business as Professional Business College Corporation, et al.,
Defendants-Appellants._________________________
Law Office of Z. Tan PLLC, New York (Bingchen Li of counsel), forappellants.
Kousoulas & Associates P.C., New York (Antonia Kousoulas ofcounsel), for respondent.
_________________________
Order, Supreme Court, New York County (Robert R. Reed, J.),
entered on or about May 10, 2018, which, to the extent appealed
from, denied defendants’ motion to dismiss the complaint as
against defendant Long Island Business Institute, unanimously
reversed, on the law, without costs, and the motion granted.
The complaint fails to state a cause of action against
defendant Long Island Business Institute (LIBI) for breach of a
severance agreement between plaintiff and defendant Professional
Business College (PBC), because it does not allege any of the
exceptions to the general rule that a corporation that acquires
the assets of another corporation is not liable for its
87
predecessor’s breaches of contract (see Kretzmer v Firesafe
Prods. Corp., 24 AD3d 158 [1st Dept 2005]). The complaint does
not allege that LIBI expressly or impliedly assumed PBC’s
contractual liability under the severance agreement or that LIBI
and PBC entered into a merger transaction to fraudulently escape
the liability under the severance agreement. It does not
expressly allege that LIBI and PBC merged or were consolidated.
While it contains some allegations, upon information and belief,
about shared location and personnel and PBC’s president’s
potential ownership interest in LIBI, the complaint fails to
allege a majority of the “hallmarks” of a de facto merger (see
Fitzgerald v Fahnestock & Co., 286 AD2d 573, 574-575 [1st Dept
2001]). It does not allege when and how any purported
acquisition by LIBI of PBC or its assets occurred. It does not
allege that PBC ceased or planned to cease operations, that LIBI
assumed any of PBC’s liabilities, or that LIBI and PBC combined
most of their assets. Nor does the complaint allege that LIBI is
88
a mere continuation of PBC (see Kretzmer, 24 AD3d at 158), and
indeed the documentary evidence shows that LIBI was established
decades before any purported merger.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
89
Friedman, J.P., Webber, Kern, González, JJ.
10909 Gregorio Clotter, Index 304009/13Plaintiff-Appellant,
-against-
New York City Housing Authority,Defendant-Respondent._________________________
Marder, Eskesen & Nass, New York (Joseph B. Parise of counsel),for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J.Lawless of counsel), for respondent.
_________________________
Order, Supreme Court, Bronx County (Llinet M. Rosado, J.),
entered on or about January 9, 2019, which granted defendant’s
(NYCHA) motion for summary judgment dismissing the complaint,
unanimously reversed, on the law, without costs, and the motion
denied.
NYCHA failed to eliminate an issue of fact as to whether it
was “‘more likely or more reasonable than not’” that the man who
shot plaintiff in the leg in front of his apartment door was an
intruder “‘who gained access to the premises through a
negligently maintained entrance’” (Torres v New York City Hous.
Auth., 93 NY2d 828, 830 [1999], quoting Burgos v Aqueduct Realty
Corp., 92 NY2d 544, 548 [1998]). Plaintiff testified that a man
spoke to him on the sidewalk just outside the building, asking
90
where he could find drugs, and that, after plaintiff entered
through the unlocked front entrance and walked up the stairs to
his floor and along the hall 10 feet to his apartment, he saw the
man again when he heard the door to the stairwell open, and the
man held him up at gunpoint.
From plaintiff’s familiarity with building residents, the
history of ongoing criminal activity, and the assailant’s failure
to conceal his or her identity a jury could reasonably infer
“that the assailant was more likely than not an intruder” (Laniox
v City of New York, 170 AD3d 519, 520 [1st Dept 2019], affd 34
NY3d 994 [2019]). Plaintiff informed the police that he could
identify the assailant if shown a photograph (see Patton v New
York City Hous. Auth., 140 AD3d 659, 660 [1st Dept 2016]; Esteves
v City of New York, 44 AD3d 538, 539 [1st Dept 2007]). NYCHA’s
evidence also showed that there was a robbery inside the building
about 18 months before plaintiff’s incident, requiring repairs to
the front door lock, and various shootings on the grounds (see
Jacqueline S. v City of New York, 81 NY2d 288, 294-295 [1993]).
Contrary to NYCHA’s contention, there is enough evidence as
to how the assailant gained entry to the building to require
consideration of whether NYCHA had actual or constructive notice
91
of the nonfunctioning door lock (see Maria S. v Willow Enters.,
234 AD2d 177, 178 [1st Dept 1996]). A jury could infer from
plaintiff’s testimony that the assailant entered the building
himself and did not need to wait for anyone in the lobby to open
the door for him.
Nor does its evidence demonstrate that NYCHA did not have
constructive notice of the nonfunctioning door lock, since
plaintiff testified that the lock was not functioning the day
before and the day of the incident, but the last daily
maintenance checklist produced by NYCHA, which included the front
door lock, was dated two days before the incident (see Ross v
Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept
2011]).
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
92
Friedman, J.P., Webber, Kern, González, JJ.
10910- Index 159870/1810910A- 100207/0810911N-10911NA In re Maria Nazor, et al.,
Petitioners,
-against-
New York City Loft Board, et al.,Respondents.
- - - - -Mushlam, Inc.,
Plaintiff-Respondent,
-against-
Maria Nazor, et al.,Defendants-Appellants._________________________
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), forpetitioners/appellants.
Georgia M. Pestana, Acting Corporation Counsel, New York (ZacharyS. Shapiro of counsel), for New York City Loft Board, respondent.
Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz ofcounsel), for Sydney Sol Group, Ltd., and Mushlam, Inc.,respondents.
_________________________
Determinations of respondent New York City Loft Board, dated
April 20, 2017, and September 20, 2018, denying petitioner
tenants’ application for Loft Law coverage for their units under
Multiple Dwelling Law (MDL) article 7-C and their application for
reconsideration of that determination, unanimously confirmed, the
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petition denied, and the proceeding brought pursuant to CPLR
article 78 (transferred to this Court by order of Supreme Court,
New York County [Barbara Jaffe, J.], entered May 16, 2019),
dismissed, without costs. Orders, same court and Justice,
entered February 23, 2018, and October 18, 2018, which, insofar
as appealed from as limited by the briefs, severed the parties’
claims and counterclaims related to rent and use and occupancy
and referred them for a nonjury trial, and granted plaintiff
landlord’s motion to renew its motion for summary judgment on its
ejectment claim, and, upon renewal, granted the motion for
summary judgment, unanimously affirmed, without costs.
The Loft Board’s determination in the article 78 proceeding
that tenants failed to meet their burden of showing that their
units are covered under the Loft Law is supported by substantial
evidence that neither petitioner Mickle nor respondent landlord’s
principal, Shimon Milul, resided in the subject building for 12
consecutive months during the relevant Loft Law “window period”
from January 1, 2008, to December 31, 2009 (see MDL § 281[5][a];
see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45
NY2d 176, 181 [1978]; Matter of Halo v New York City Loft Bd.,
300 AD2d 77, 77 [1st Dept 2002]). To the extent tenants cite
evidence that might have supported a different outcome, we may
94
not weigh the evidence or reject the credibility determinations
of the administrative law judge who presided over the hearing and
of the Loft Board (see Matter of Collins v Codd, 38 NY2d 269,
270-271 [1976]).
Further, the coverage determination was not affected by an
error of law. There is no basis for applying the doctrine of
collateral estoppel to preclude landlord from denying that Mickle
and Milul resided in the building (see Kaufman v Eli Lilly & Co.,
65 NY2d 449, 455 [1985]; Gilberg v Barbieri, 53 NY2d 285, 291
[1981]). Supreme Court’s statement about Milul’s use of a fifth-
floor loft space as a pied-a-terre was not necessary to the
interim use and occupancy (U&O) issues adjudicated in the court’s
July 2012 order. Nor, given petitioner Nazor’s undisputed
residence on the fourth floor, was it strictly necessary for the
court to reach the issue of whether Mickle resided there.
Moreover, given that Mickle had not yet disclosed the fact that
he rented the bedroom in a one-bedroom apartment on 14th Street
beginning in about 2004, landlord cannot be said to have had a
“full and fair opportunity” to litigate the issue of Mickle’s
residence in the interim U&O hearing.
There is no basis for applying the doctrine of judicial
estoppel to certain other statements, given, among other things,
95
Mickle’s failure to disclose the 14th Street apartment (see
Matter of Charles v Charles, 296 AD2d 547, 550 [2d Dept 2002]).
Viewed as a whole, the Loft Board’s well reasoned coverage
determination makes it clear that the Board applied the correct
residence standard in assessing whether tenants established
coverage. Tenant’s argument that either the ALJ or the Loft
Board was affected by bias is not supported by the record (see
Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 NY2d
833 [1989]).
The Loft Board providently exercised its discretion in
denying tenants’ reconsideration application (see 29 RCNY 1-
07[b]).
The pendency of a number of Loft Law-related coverage
applications — including a second reconsideration application
made to the Loft Board and a new coverage application made
pursuant to the July 2019 Loft Law amendments (see MDL §
281[6][c]) — does not render the October 2018 order granting
plaintiff summary judgment on its ejection claim premature.
Those coverage applications are outside the administrative record
before us (see Matter of Yarbough v Franco, 95 NY2d 342, 347
[2000]). Moreover, the instant determination of tenants’ rights
under the 2010 Loft Law is independent from their application for
96
coverage under the 2019 Loft Law (see L 2019, ch 41, § 10; Matter
of Salvadore v New York City Loft Bd., 79 AD3d 488, 489 [1st Dept
2010]).
The defenses raised by tenants do not affect landlord’s
claim for ejectment and were therefore properly severed and
referred for a nonjury trial.
Finally, we find that Supreme Court providently exercised
its discretion in entertaining landlord’s renewal motion,
notwithstanding the lack of strict compliance with CPLR 2214(c)
(see Biscone v JetBlue Airways Corp., 103 AD3d 158, 178 [2d Dept
2012], appeal dismissed 20 NY3d 1084 [2013]). Tenants failed to
show that they were prejudiced by landlord’s submission or that
the papers were otherwise not sufficient for the court’s
consideration of the questions involved.
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We have considered tenants’ remaining contentions, both as
to the Loft Board determinations and the severance and ejectment
orders, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
98
Friedman, J.P., Webber, Kern, González, JJ.
10912N Manoa Vargas, Index 309300/10Plaintiff,
-against-
Anthony G. LaMacchia,Defendant-Respondent,
Walter C. Sevillano,Defendant-Appellant._________________________
Koors & Jednak, P.C., Bronx (Paul W. Koors of counsel), forappellant.
Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro ofcounsel), for respondent.
_________________________
Order, Supreme Court, Bronx County (Donald A. Miles, J.),
entered on or about May 13, 2019, which, to the extent appealed
from as limited by the briefs, denied defendant Walter C.
Sevillano’s motion to vacate an order, same court and Justice,
dated June 14, 2018, sua sponte declaring a mistrial and setting
aside the jury’s verdict following a summary jury trial, and
setting the matter down for a new jury trial, unanimously
reversed, on the law, without costs, the order dated June 14,
2018 vacated, and the jury verdict reinstated.
The parties stipulated to a summary jury trial pursuant to
the rules and procedures for Bronx County (see The Summary Jury
99
Trial Process: Bronx Rules and Procedure [as amended Sep. 23,
2008]). “A summary jury trial is a voluntary, innovative and
streamlined form of alternative dispute resolution that combines
the flexibility and cost-effectiveness of arbitration with the
structure of a conventional trial” (Griffin v Yonkers, 26 Misc 3d
917, 918-919 [Sup Ct, Bronx County 2009]). “In the absence of
agreement of counsel and approval by the trial court, the process
provided in the rules of the jurisdiction apply” (id. at 919).
The SJT rules to which the parties stipulated provide,
among other things, that “[p]arties agree to waive any motions
for directed verdicts as well as any motions to set aside the
verdict or any judgment rendered by said jury” and that the
“Court shall not set side any verdict or any judgment entered
thereon, nor shall it direct that judgment be entered in favor
[of] a party entitled to judgment as a matter of law, nor shall
it order a new trial as to any issues where the verdict is
alleged to be contrary to the weight of the evidence” (The
Summary Jury Trial Process: Bronx Rules and Procedure [as amended
Sep. 23, 2008], at 4 ¶ 13).
The court erred in sua sponte declaring a mistrial and
setting aside the verdict. While this was an attempt to correct
an admittedly erroneous evidentiary ruling, the parties’
100
stipulation to a summary jury trial, subject to the applicable
rules and procedures for Bronx County, was a legally binding
contract (see Chae Shin Oh v Jeannot, 160 AD3d 701, 702-703 [2d
Dept 2018]; Bennice v Randall, 71 AD3d 1454, 1454-1455 [4th Dept
2010]; Grochowski v Fudella, 70 AD3d 1407, 1408 [4th Dept 2010];
see also Acosta v Xinna Lu, 65 Misc 3d 1224[A], 2019 NY Slip Op
51826[U], *2-3 [Civ Ct, Bronx County 2019]). Since the summary
jury trial rules for Bronx County do not provide for any means to
correct errors of law committed during trial, the court exceeded
the boundaries of the parties’ agreement by setting aside the
verdict, regardless of whether it in fact did so on its own
initiative in the interest of justice (see CPLR 4404[a]; compare
Bennice, 71 AD3d at 1454-1455 [provision in pertinent summary
jury trial stipulation permitted appeals only for “‘instances in
which the rights of a party were significantly prejudiced by . .
. an error of law that occurred during the course of the trial’”
(omission in original)]; Grochowski, 70 AD3d at 1408 [court did
not violate terms of parties’ summary jury trial stipulation by
granting motion to set aside verdict where stipulation was silent
as to such motions]).
Contrary to defendant LaMacchia’s argument, this holding
does not proscribe post-trial motions of any kind in connection
101
with summary jury trials; rather, it abides by the parties’ own
proscriptions made at the time that they stipulated to proceed
with a summary jury trial. There was nothing barring the parties
from stipulating to reserve their right to appeal or move to set
aside the verdict on the ground of an error of law.
We have considered defendant LaMacchia’s remaining
contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
102
Gische, J.P., Kapnick, Webber, Moulton, JJ.
11002 Kendall Tracy, Index 304532/15Plaintiff-Respondent,
-against-
29-33 Convent Avenue Housing Development Fund Corporation, et al.,
Defendants-Appellants._______________________
Law Office of Brian Rayhill, Elmsford (Renaud T. Bleecker ofcounsel), for 29-33 Convent Avenue Housing Development FundCorporation and Midas Management Assoc., Inc, appellants.
Hoffman Roth & Matlin, LLP, New York (Joshua R. Hoffman ofcounsel), for 33 Convent Laundromat, Inc., appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaacof counsel), for respondent.
______________________
Order, Supreme Court, Bronx County (Wilma Guzman, J.),
entered on or about April 12, 2019, which, inter alia, in this
action for personal injuries sustained when plaintiff slipped and
fell on the sidewalk, denied defendants’ motions for summary
judgment dismissing the complaint and cross claims against them,
unanimously affirmed, without costs.
Defendants’ submission of climatological records and the
affidavit of a meteorologist were not sufficient to conclusively
establish that a winter storm was in progress at the time of the
accident (see De Los Santos v 4915 Broadway Realty LLC, 58 AD3d
103
465 [1st Dept 2009]). There was no precipitation falling at the
time that plaintiff fell, and defendants have not established
that there were more than trace amounts of snow falling in the
several hours leading up to the fall (id.; Powell v MLG Hillside
Assoc., 290 AD2d 345, 346 [1st Dept 2002]). Defendants also
failed to show that plaintiff’s fall was not caused by
preexisting ice, which plaintiff observed at the accident
location two days before he fell (see Perez v Raymours Furniture
Co., Inc., 173 AD3d 597 [1st Dept 2019]).
Factual issues also remain surrounding the cross claims
asserted by defendants 29-33 Convent Avenue Housing Development
Fund Corporation and Midas Management Assoc., Inc. against
defendant laundromat, a commercial tenant, which preclude
resolution by summary judgment. While Express claims that
Convent and Midas, as owner and managing agent, had the duty to
maintain the sidewalk, the lease contained a snow removal
provision and employees of both Convent and Express engaged in
snow removal efforts in the area. Nor is Midas entitled to
summary judgment on its claim that it was not in control of the
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premises, as there remain factual issues surrounding its duties
as the building’s managing agent.
We have considered defendants’ remaining contentions, and
find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
_______________________CLERK
105